The Court instructed the jury as follows: “ You will also observe that the difference between murder and manslaughter is, that in manslaughter there is no intention whatever either to kill or to do bodily harm. The killing is the unintentional result of a sudden heat of passion, or of an unlawful act committed without due caution or circumspection.”
This is clearly erroneous. Whether the homicide amounts to murder or to manslaughter merely, does not depend upon the presence or absence of the intent to kill. In either case there may be a present intention to kill at the moment of the commission of the act. But when the mortal blow is struck in the heat of passion, excited by a quarrel, sudden, and of sufficient violence to amount to adequate provocation, the law, out of forbearance for the weakness of human nature, will disregard the actual intent and will reduce the offense to manslaughter. In such case, although the intent to kill exists, it is not that deliberate and malicious intent which is an essential element in the crime of murder.
Under the circumstances of this case, as shown by the testimony, it was important that the distinctions between the several grades of homicide should be correctly stated to the jury. They could hardly fail to be misled by the erroneous instruction we have noticed.
Several other points were made by the counsel for defendant, which we do riot deem it necessary to discuss.
Judgment and order reversed, and cause remanded for a new trial.